Q: Can an active first offender case be used to enhance a sentence under the 17-10-7 statue?
A:
After the state provides sufficient notice, OCGA § 17-10-7 requires that a trial court sentence a defendant to the maximum under subsection (a) if the defendant already has a felony conviction and commits a new felony while incarcerated, or (c) on a subsequent felony conviction after a defendant has already been convicted of three prior felonies. Subsection (b) requires that a defendant be sentenced to life without parole for a serious violent felony if that individual has already been previously convicted of a serious violent felony.
However, an active First Offender case would not be a "conviction" for sentencing purposes under OCGA § 17-10-7 because no formal adjudication on the case has been entered into the record. That being said-if the state were able to to revoke the first offender status based on the current case, it could do so, the defendant would be formally sentenced for the First Offender case, and it would then count as a conviction under OCGA § 17-10-7 for the current case.
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